RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01751
BRANCH OF SERVICE:  army 	SEPARATION DATE:  20041230

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E7, Military Policeman, medically separated for “chronic back pain” with a disability rating of 10%.

CI CONTENTION:  The CI contends that his back condition was rated at 10%, but should have been rated at 40% IAW CFR 4.71a, which states “flexion of the thoracolumbar spine of 30 degrees or less regardless of pain is a disability rating of 40%.”  The complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The panel’s scope of review is defined in DoDI 6040.44.  It is limited to review of disability ratings assigned to those conditions determined by the Physical Evaluation Board (PEB) to be unfitting for continued military service and when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting or non-compensable.  Any conditions outside the panel’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military Records.  Furthermore, the panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition(s) at the time of separation.  The panel has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The panel gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB - 20040915	VARD - 20050412	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5241	10%	Degenerative Disc Disease, Lumbar Spine L5-S1 with Spondylolisthesis L5 on S1	5239	20%	20040929	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:  

Chronic Back Pain.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent back surgery with fusion of L4-S1 in September 2002 for grade II/IV spondylolisthesis (forward sliding of one vertebrae over the lower one).  Following the surgery, the CI was on profile but the back pain persisted although leg pain had resolved.  At an 18 June 2003 neurosurgery visit the CI reported that he had fallen during an exercise and began having pain down both legs with dysesthesias (unpleasant, painful sensations) to the lateral aspect of the feet.  Lumbar spine X-rays the same day showed a persistent significant spondylolisthesis at L5-S1.  On 1 July 2003 follow-up flexion and extension X-rays showed incomplete fusion.  At a February 2004 primary care visit, the CI reported back pain and a change in gait.  The examiner noted the CI appeared uncomfortable and had a waddling gait.  A 17 March 2004 primary care visit the CI reported increased low back pain without radiation to the legs.  

At the 3 May 2004 physical therapy (PT) back ROM evaluation, 8 months prior to separation, flexion was 15 degrees (examiner normal 80, VA 90), extension 5 degrees (examiner normal 20, VA-30) and left and right lateral flexion 5 degrees (examiner normal 35 bilaterally, VA-30).  The examiner noted that he used an inclinometer to assess ROM.  The CI’s active ROM was severely limited by pain.

During the 3 May 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 8 months prior to separation, the examiner recorded that the CI had grade 6-7/10 back pain radiating to the hips and thighs bilaterally.  Pain increased with cold, standing, sitting, changing positions, driving, walking greater than 45 minutes or lifting greater than 35 pounds.  Physical examination showed a wide based, antalgic gait.  There was midline lumbar tenderness and bilateral spasm.  Back ROM measurements were 20 degrees of flexion (normal 90) and 80 degrees of total combined ROM (normal 240).  Motor strength was graded 2/5 in the bilateral lower extremities, sensation was decreased in the right foot, but reflexes were normal.  

The MEB NARSUM, dated 18 May 2004, 7 months before separation, noted complaints of low back pain that radiated to the buttocks and thighs bilaterally (left worse than right).  The CI’s pain increased with prolonged walking, standing or going up and down stairs.  The CI denied bowel or bladder dysfunction.  The 12 April 2004 physical examination, 9 months prior to separation, showed that the CI walked slowly.  There was mild tenderness, and “obvious decreased ROM in the lower back,” without ROM measurements recorded.  Straight leg raise testing to elicit radicular symptoms was positive at 30 degrees bilaterally.  Lower extremity reflexes were normal, but motor strength and sensation were not recorded.  

A 24 May 2004 primary care visit, 7 months before separation, the CI reported increased low back pain for several days without radiation down both legs.  A lumbar MRI on 25 May 2004 showed surgical hardware and persistent grade II spondylolisthesis at L5-S1 with high grade foraminal narrowing, left more than right.  On 31 August 2004 a computed tomography myelogram showed the grade II spondylolisthesis without definite nerve root contact, but with clumping of the lumbar nerve roots at L5-S1, consistent with arachnoiditis.  On 8 September 2004, the neurosurgeon indicated that the CT showed resorption of the surgical fusion.  He noted the CI had poor ROM due to his fusion and chronic pain due to nerve injury.  He also recommended a second opinion for consideration of further spine surgery.  

At the 29 September 2004 VA Compensation and Pension (C&P) evaluation, 3 months before separation, the CI reported constant 7/10 low back pain that radiated to the outside of his hips and down into the buttocks.  The pain was elicited with physical activity and stress.  The CI reported six incidents of incapacitation totaling 12 days within the past year, but the examiner indicated that the physician who recommended bed rest was the initial spine surgeon in September 2002, which was well outside the 12 month window.  The CI reported that at the time of pain he could sometimes function, but at others he could not and medication decreased, but did not eradicate the pain.  Physical examination showed a normal gait.  There was lumbar tenderness and spasm.  Thoracolumbar (TL) ROM testing showed forward flexion of 30 degrees and combined TL ROM of 105 degrees.  The examiner noted pain with flexion and extension movements.  There was no radiating pain with movement.  There was no additional limitation due to fatigue, weakness, lack of endurance or incoordination.  Provocative tests to elicit radicular pain were negative bilaterally and motor strength, reflexes and sensation were all normal.  There was no ankylosis of the TL spine and there were no signs of intervertebral disc syndrome present.  Lower extremity strength, sensation, and reflexes were normal.  
The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5241 (spinal fusion), citing “thoracolumbar ROM limited by pain, with localized tenderness” and “without neurologic abnormality.”  The VA rated the back condition 20%, coded 5239 (spondylolisthesis or segmental instability), based on the C&P examination 3 months before separation, citing forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined ROM of the thoracolumbar spine not greater than 120 degrees.

The panel agreed that a 40% rating, was justified for limitation of flexion not greater than 30 degrees as reported on the PT, MEB, and VA examinations.  Although the CI had a complex spine condition with radiating pain to the lower extremities, there was no evidence of incapacitating episodes which required physician-prescribed bed rest within the 12 months before separation, or in the period up to the VA examination to warrant consideration of rating under the alternate VASRD formula based on incapacitating episodes.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 40% for the back condition, coded 5241.  

BOARD FINDINGS:  In the matter of the back condition, the panel unanimously recommends a disability rating of 40%, coded 5241 IAW VASRD §4.71a.  There are no other conditions within the panel’s scope of review for consideration.  

The panel recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Back Pain	5241	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20161113, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20180000013, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to re-characterize your separation as a disability retirement with the combined disability rating of 40% effective the date of your medical separation for disability with severance pay.  Enclosed is a copy of the Board’s recommendation and record of proceedings for your information.

	The re-characterization of your separation as a disability retirement will result in an adjustment to your pay providing retirement pay from the date of your original medical separation minus the amount of severance pay you were previously paid at separation.
 
	The accepted DoD PDBR recommendation has been forwarded to the Army Physical Disability Agency for required correction of records and then to the U.S. Defense Finance and Accounting Service to make the necessary adjustment to your pay and allowances.  These agencies will provide you with official notification by mail as soon as the directed corrections have been made and will provide information on your retirement benefits.  Due to the large number of cases in process, please be advised that it may be several months before you receive notification that the corrections are completed and pay adjusted.  Inquiry concerning your correction of records should be addressed to the U.S. Army Physical Disability Agency, (AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557.

	A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,					      
Enclosure